11:33 AM Mon 28 Sep 2009 GMT
Another couple of Affidavits hit desk of Justice Shirley Kornreich, in the New York Supreme Court, last week. They are the latest in a building storm over the rules to be used for the upcoming America's Cup, scheduled for Ras al Khaimah in early February 2010.
Rules are a fundamental part of yacht racing, without them you don't have an event.
In America's Cup terms, the minutiae of the rules are vitally important, and have a significant impact. A word here, a phrase there and you have a potential for design advantage, and the winning of the most prestigious and oldest trophy in sailing.
This America's Cup is different from all others that have gone before it. To sailing aficionados it will settle the time old argument that the America's Cup should be sailed using the fastest boats possible and that it should be a battle of sailing technology, and not that of match racing in lead bellied leviathans.
The Golden Gate Yacht Club lodged their Challenge in July 2007, just a week after that by the now disenfranchised Club Nautico Espanol de Vela, the self titled 'legal adjustment' designed to accommodate various agendas regarding the 33rd America's Cup.
After a year of legal argument the Appeals Court of the State of New York decided that the meaning of the word 'having' (as in 'having for its annual regatta') was past tense only in respect of the Deed of Gift for the America's Cup, and as the unfortunate CNEV had not already held an annual regatta, then they were not a valid Challenger, and had to stand aside in favour of the second Challenge, Golden Gate YC, which did comply with the requirements of the Deed of Gift.
As an aside, the Appeal Court could not resolved whether in itself, 'having' had a past or future tense meaning in terms of the Deed. It could be read both ways with different effect. So, the Court looked at the meaning of another word, which referred to a second criteria for a valid Challenger 'organised' as in 'any organised Yacht Club of a foreign country...' and determined that verb could only make sense with a past tense meaning, so therefore having was also past tense.
Just one word can make a huge difference
The current legal epicenter revolves around the measurement of Load Waterline Length ( a term almost unique to the America's Cup in terms of yacht measurement), and the meaning of the words 'not exceeded' (as in dimensions shall not be exceeded').
In his affidavit, Alinghi's design consultant,
Tom Schnackenberg
conceded that 'there are not too many class or rating rules which specify LWL as a measurement.' And continues 'however one which does is the international rule for model yachts and in this, rudders are included in the measurement of LWL, both the portion on the waterline and any significant extension further aft which may lie underwater.'
Schnackenberg doesn't specify which call, or classes to which he is he is referring, however of the four international radio controlled international classes (model yachts) listed on the International Sailing Federation (ISAF) website, only one, the Int A Class, includes the rudder in the LWL measurement. The reason for this is reasonably obvious, as the rudder in this class is an extension of the canoe body, and it would be relatively simple gain a free length extension.
The rudders on the America's Cup Challenger (in her current configuration) are a dagger type rudder on the amas (floats) and the main hull features a basic transom hung rudder, again not part of the hull. But we digress.
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The Int A Rater is the only one of the four Int Radio Controlled classes which include the rudder in the waterline length measurement. -
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Rules for the Int 10 Rater are shown as being of 1992 vintage. The other three International Model yacht classes have a more recent set of rules, which use the ISAF Equipment Rules of Sailing. The ERS are a standard set of measurement definitions published by the ISAF and used in many classes to save defining measurement points and processes.
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The ISAF Equipment Rules of Sailing give three examples showing the rudder is excluded from the measurement of hull length. -
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The ERS do not specify how to measure a Load Water Line but they do define what a 'Hull' is and made the separate definition of a 'Hull Appendages' which includes rudders. Further the ERS show a measurement diagram of various hull measurements, and it is obvious from these that the rudder, as a hull appendage, is excluded from length measurements. So it is reasonable to make the assumption that if the ISAF ERS were used, as the ISAF Racing Rules will surely be for the 33rd America's Cup, then rudders would be excluded from length measurements.
A couple of weeks earlier, for the Challenger, noted US designer
Halsey Herreshoff
's affidavit, gave an independent perspective noting that he had measured over 100 yachts for the Cruising Club of America, which did include Load Water Line measurements and 'consistent with universal practice, I at no time included the rudder in that measurement.'
Citing a further three separate examples of classes, designs and practice where the rudder was excluded from Load Waterline Measurements, Herreshoff concludes his affidavit with the statement 'the uniform custom and practice since the inception of the America's cup and continuing through to today, has been to exclude any portion of the rudder from the measurement of length on load waterline.'
The critical question of whether the rudder marks the after end of the intersection with the water can be seen from the photo below, or it it should be the point of intersection of the
hull
with the water.
Rolf Vrolijk, a naval architect of some 35 years experience, including the design of the last two winners of the America's Cup for Alinghi, is employed by the team, and provided a
second affidavit
from a design perspective.
After rattling through various truisms of yacht design and multihull design, including identifying the basic performance determining parameters of waterline length, waterline beam weight and sail plan dimensions; explaining what happens to performance when a multihull flies a hull, and concludes that 'beam of the boat is the most critical dimension for determining the performance profile of a multi-hull. Each individual hull has its won distinct waterline beam, but it is the waterline beam of the boat that drives the stability of the boat and thus the maximum driving force. Beam selection, when viewed in light of the need to hull fly, is a major determinant of the boat's performance profile.'
'The design of Alinghi's boat was based on dimensions contained in GGYC's certificate -- 90 feet in length on load waterline by 90 feet in width on the load waterline. Had GGYC declared a narrower or shorter vessel, SNG would have designed its vessel differently,' Vrolijk concluded.
The highly regarded designer's comments are geared to support the other argument in the Defender's interpretation of the Rules and Deed of Gift.
Specifically where the Challenger is required to provide the length on load waterline, beam at load waterline and extreme beam, the Deed says: 'which dimensions shall not be exceeded'.
Golden Gate YC through its Challenger, BMW Oracle Racing take the view reinforced by a strict interpretation of the Deed of Gift that 'not exceeded' means just that. In other words the dimensions cannot be greater than those stated on the Notice of Challenge, but they could well be less. How much less is the question, asked by the Defender.
For its part, Societe Nautique de Geneve, would like to have the rules interpreted as meaning that the Challenger 'USA' must be close to or 'match' the measurements stated in the Notice of Challenge.
Vrolijk's recitals are aimed at establishing this view, which would probably not be sustained by a literal reading of the Deed of Gift - just as Michael Fay and Mercury Bay failed to have the implied term 'fair' attached to the word 'Match' in the Deed of Gift. (Although the Supreme Court did uphold that any Match had by implication to also be 'fair' that view was overturned by the Appeal Court in a majority decision, who preferred a literal reading of the Deed of Gift to establish the intentions of the donor.)
On that basis, the Defender could be on a hiding to nowhere on this issue. However as their Counsel, Barry Ostrager notes 'GGYC's interpretation of the Deed of Gift to permit it to race in any vessel that falls within the maximum specifications in its designed Certificate is unsupportable. Every Challenger could disguise its challenge vessel by specifying the maximum figure for all dimensions. That would deprive the defender of a key competitive advantage it is awarded in the Deed of Gift.'
This argument is a practical nonsense The point that is missed of course, is that if the notice of Challenge was for the dimensions of a yacht that was obviously a monohull of say 70ft LWL and 15ft beam, the Defender (again on a literal reading of the Deed of Gift) is allowed to respond with any size yacht it likes within the maximum LWL limits set in the Deed of Gift.
SNG could well respond, to the 75ft monohull challenger, with a 90ft LWL multihull Defender, and she would be street-legal in terms of the Deed of Gift. The sailing world would be treated to a slow action replay of the 1988 Mis-Match better known as the Coma off Pt Loma.
Perhaps a more realistic option is that BMW Oracle with her trimaran configuration could turn up with a smaller centre hull (measuring say 80ft on LWL) and weighing less, supported by two amas that in reality are over 100ft when in sailing mode. But because they just kiss the water at their centre (and the rudder is excluded from the LWL measurement) they too could measure in at substantially less that the 90ft stated on the Notice of Challenge, as the are not exceeding the stated measurements.
At this point it should be obvious that the permutations on measurements and rules where multihulls are concerned, are pretty well endless, and easily adjustable by ballasting, to achieve bow down or stern down trim, to achieve the desired measurement.
Most aficionados would know that longer was probably better in sailing, and 90ft or something less, is just fine. There is no point in coming to the dog fight with a pooch.
A literal reading of the Deed backed up by a dollop of commonsense as found in the ISAF Equipment Rules of Sailing should be more than suffice for Justice Shirley Kornreich or the Learned Minds of the Appeal Court to reach a decision.
Hopefully these affidavits, for all their fine intentions are not too far away from the legal shredder.
The real risk for the sailing world is that a seemingly minor point stretches into the full round of Appeals and the date of 8 February 2010 is missed for the 33rd America's Cup, delaying the next (34th) match - a multi challenger event until July 2013 or later.
At that point the America's Cup as we know it will be dead.
One side will have won the battle, but sailing will have lost the war - and all over the meaning of just a couple of words.
by Richard Gladwell
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Troughton Island, WA
